- Mrs Whitaker (the Respondent) had been nearly blind in her right eye since age 9. In 1983, at age 47, after a routine eye check-up she was referred to the appellant for possible surgery.
- The Appellant, Dr Rogers, advised her that he could operate on her right eye to remove scar tissue, to improve its appearance & possibly restore significant sight to that eye as well as assisting in the prevention of glaucoma.
- Following the operation: there was no improvement in her right eye and R developed inflammation & sympathetic ophthalmia (1:14000 chance) in left eye, which led to complete loss of sight in the left eye and thus almost total blindness.
- The Appellant had not advised the R of this risk.
Did the doctor’s failure to advise and warn R of risks inherent in the operation constitute a breach of duty?
UK: Duty extends to all the ways in which a doctor is called upon to exercise his skill and judgment – Sidaway v Governors of the Bethlem Royal Hospital  AC (Court here says this extends to examination, diagnosis and treatment)…
UK: The Bolam principle: may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice.
The HC rejected the Bolam test.
Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said
re Standard of Care:
…the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising & professing to have that special skill…but, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade…
Re peer professional opinion
…particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to “the paramount consideration that a person is entitled to make his own decision about his life’”.
Re duty to warn of risks
…the law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.